ISAAC FOGEL, PETITIONER V. UNITED STATES OF AMERICA
No. 90-218
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinion below
Jurisdiction
Statement
Argument
Conclusion
OPINION BELOW
The opinion of the court of appeals (Pet. App. 1a-16a) is reported
at 901 F.2d 23.
JURISDICTION
The judgment of the court of appeals was entered on April 4, 1990.
A petition for rehearing was denied on May 7, 1990. Pet. App.
17a-18a. The petition for a writ of certiorari was filed on August 1,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether petitioner, who cut down trees on public lands to improve
the view from his property, was properly convicted of converting to
his use a "thing of value of the United States" under 18 U.S.C. 641.
STATEMENT
After a jury trial in the United States District Court for District
of Maryland, petitioner was convicted of converting government
property, in violation of 18 U.S.C. 641; and cutting timber growing
on the public lands of the United States, in violation of 18 U.S.C.
1852. He was sentenced to 15 days' confinement in a halfway house and
ordered to perform 300 hours of community service. He was also fined
$20,000 and ordered to make restitution for the destroyed government
property.
1. Petitioner owned a house and surrounding property in Maryland's
Potomac River Valley, the value of which would nearly double if it had
an unobstructed view of the Potomac River. Between petitioner's
property and the river, however, lay the C&O Canal National Historic
Park, created by Congress in 1971 in order to preserve the wooded area
as it had appeared during the time the C&O Canal Company operated the
canal. In addition, the United States had obtained in 1977 a scenic
easement over petitioner's property that restricted the landowner from
cutting down any tree measuring in excess of six inches in diameter at
breast height. Petitioner and his wife purchased the property,
subject to the easement, in 1982. They were repeatedly informed by
National Park Service officials that it would be both illegal and a
detriment to a unique environment to cut down trees subject to the
easement or within the C&O National Historic Park. Pet. App. 3a-4a,
12a n.4; Gov't C.A. Br. 3-5, 9.
To enhance the value of his property, petitioner nevertheless
decided to create a clearing to give the property a view of the
Potomac River. In February 1985, he hired Suburban Tree Service to do
the work. Petitioner did not tell Gary Ralph, the owner of Suburban
Tree Service, about the scenic easement or the boundary line of the
C&O Canal National Historic Park, and Ralph believed that the entire
area behind the house belonged to petitioner. Pet. App. 4a-5a; Gov't
C.A. Br. 5-7.
After one day's work by Ralph and a crew of four workers,
petitioner expressed displeasure because the area was not adequately
cleared. He told Ralph that he wanted a good view of the river and
directed the crew to cut all the way down to the canal. After
petitioner declined to increase his payment for the tree-cutting
service, he and Ralph agreed that the crew could leave the cut trees
where they fell. Pet. App. 5a; Gov't C.A. Br. 7. Ralph and his crew
returned the next day to complete the job. Following petitioner's
directions, the crew cut down and left approximately 100 trees within
the boundaries of the C&O Canal National Historic Park. They also cut
down and left 12 trees on petitioner's property that were subject to
the scenic easement. Pet. App. 5a-6a; Gov't C.A. Br. 7-9. An expert
witness testified that the replacement value of the trees was in
excess of $30,000 and that the natural scene destroyed by cutting down
the trees would take approximately 35 years to recreate. Gov't C.A.
Br. 9-10.
2. The court of appeals affirmed. Pet. App. 1a-16a. It rejected
petitioner's contention that the evidence was insufficient to sustain
a conviction under 18 U.S.C. 641 because there was no evidence that
petitioner had converted the trees to his own use. Pet. App. 10a-12a.
Relying on Morissette v. United States, 342 U.S. 246 (1952), the
court explained that "(c)onversion under Section 641 does not require
that the accused actually keep the property for personal use," and
that conversion includes "intentional and knowing abuses or
unauthorized uses of government property." Pet. App. 11a. The court
held that the evidence was sufficient to sustain petitioner's
conviction, since "(he) cut down trees valued in excess of $30,000 to
enhance his view and hence the value of his property, substantially
and criminally interfering with the government's use of that
property." Pet. App. 12a (footnote omitted). /1/
ARGUMENT
Petitioner contends that his conviction under 18 U.S.C. 641 should
be reversed because his act of cutting down trees on public lands
without depriving the government of possession of the felled trees
does not constitute an offense under that Section. Pet. 12-30.
1. The court of appeals correctly concluded that petitioner's act
of cutting down the trees located in the C&O Canal National Historic
Park constituted a knowing conversion under 18 U.S.C. 641 because it
"substantially and criminally interfered with the government's use of
that property." Pet. App. 12a. Petitioner's contention to the
contrary (Pet. 19-23, 27-30) rests on the premise that the scope of
Section 641 is limited by the common law definitions of larceny-type
offenses, which were restricted to the theft of personal property.
This view further depends on a distinction between standing timber,
which the common law considered real property, and severed timber,
which the common law considered personal property. Under petitioner's
theory, since only the former -- standing timber or "real property" --
was at issue here, Section 641 cannot apply.
Like the difference in offenses that depended on the determination
whether and by whom timber had been cut, the distinction between the
character of timber as "real" or "personal" property is "subtle and
illogical." United States v. Gemmill, 535 F.2d 1145, 1149-1150 (9th
Cir.), cert. denied, 429 U.S. 982 (1976). By its plain terms, Section
641 is not limited by such distinctions. Rather, it broadly punishes
"(w)hoever embezzles, steals, purloins, or knowingly converts to his
use * * *, or without authority * * * disposes of any * * * thing of
value of the United States or any department or agency thereof." /2/
The trees growing in the C&O Canal National Historic Park were clearly
"thing(s) of value" to the United States, not merely because of the
value of the timber, but because of the wooded scene the trees made
possible. Petitioner's destruction of those trees fell within the
scope of Section 641.
In accordance with this language, this Court noted in Morissette v.
United States, 342 U.S. 246 (1952), that "(t)he history of Section 641
demonstrates that it was to apply to acts which constituted larceny or
embezzlement at common law and also acts which shade into those crimes
but which, most strictly considered, might not be found to fit their
fixed definitions." /3/ Id. at 269 n.28. The Court also noted that
"(t)he word 'converts' does not appear in any of (Section 641's)
predecessors." Ibid. Consistently with the district court's jury
instruction in this case, the Court later explained (id. at 271-272):
Conversion * * * may be consummated without any intent to keep
and without any wrongful taking, where the initial possession by
the converter was entirely lawful. Conversion may include
misuse or abuse of property. It may reach use in an
unauthorized manner or to an unauthorized extent of property
placed in one's custody for limited use. * * * It is not
difficult to think of intentional and knowing abuses and
unauthorized uses of government property that might be knowing
conversions but which could not be reached as embezzlement,
stealing, or purloining.
Petitioner's act of cutting the trees was a knowing abuse of the
government's property for his own benefit and therefore amounted to a
conversion within the meaning of Section 641. /4/
2. Contrary to petitioner's contention (Pet. 15-19), the decision
of the court of appeals in this case does not conflict with decisions
of the Ninth and Tenth Circuits. In most of the cases on which
petitioner relies, the defendants were charged with violating Section
641 by cutting and removing timber from public lands. The principal
issue was whether a defendant could be separately charged under 18
U.S.C. 1852 or 1853 for cutting down the timber without improper
merger of the offenses; the courts determined that a defendant could
be so charged. See United States v. Larsen, 596 F.2d 410, 411-412
(10th Cir. 1979); United States v. Gemmill, 535 F.2d 1145, 1149-1150
(9th Cir.), cert. denied, 429 U.S. 982 (1976); United States v.
Cedar, 437 F.2d 1033, 1035-1036 (9th Cir. 1971). /5/
In Magnolia Motor & Logging Co. v. United States, 264 F.2d 950 (9th
Cir.), cert. denied, 361 U.S. 815 (1959), the district court addressed
the question whether the stealing and converting of logs, agreed to be
the property of the United States, could be punished under Section 641
in light of the fact that it could also be punished under Sections
1852 and 1853. The court asserted that one of the elements
distinguishing a Section 641 from a Section 1852 or 1853 offense was
that Section 641 applied to personalty, not realty. United States v.
Lamb, 150 F. Supp. 310, 312-314 (N.D. Cal. 1957). The court of
appeals, in upholding the conviction, stated that "the cutting and
felling of the trees, the making of the logs and the theft and
conversion thereof were distinct, separate and independent acts." The
court therefore concluded that the logs were personal property. 264
F.2d at 954. Thus, the court of appeals simply addressed the
sufficiency of the evidence in the context of the common law rule that
it was not larceny to sever trees from property and carry them away in
one continuous act, but it was larceny if the severance of the trees
and their asportation constituted separate acts. See generally 2 W.
LaFave & A. Scott, Substantive Criminal Law Section 8.4, at 349-350
(1986).
While noting that the Magnolia Motor decision paid "lip service" to
the common law treatment of stolen timber, the Ninth Circuit
subsequently has rejected the common law distinction between trees
that are severed and carried away in one continuous act and those that
are cut and carried away in separate steps. See United States v.
Gemmill, 535 F.2d at 1150. In addition, the court has since upheld a
ruling that a defendant can be charged in separate counts under
Section 641 for cutting down timber and for removing it, although one
of the charges should be dismissed after conviction to avoid a
multiplicitous indictment. See United States v. Manes, 420 F. Supp.
1013, 1017-1019 (D. Or. 1973), aff'd without opinion, 549 F.2d 809
(9th Cir. 1977) (Table). Current Ninth Circuit law therefore suggests
that trees have value in place and that cutting the trees can be a
form of conversion that violates 18 U.S.C. 641. /6/
The Ninth Circuit has not yet had to define the scope of Section
641 in a case in which the Section 641 conviction concerns wood that
is not removed nor one in which the cutting itself affects a value --
the scenic quality of the forest -- distinct from the value of the
trees as timber. The Ninth Circuit's decisions are therefore not in
conflict with the Fourth Circuit's decision in this case. In any
event, to the extent there is tension in the analysis of the Fourth
and Ninth Circuit decisions, the infrequency with which this issue has
arisen over the past 30 years demonstrates that it is not of
sufficient recurring importance to warrant this Court's review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Acting Assistant Attorney General
JOSEPH C. WYDERKO
Attorney
OCTOBER 1990
/1/ We agree with petitioner (Pet. 20 n.3) that the court of
appeals evidently meant that petitioner substantially and criminally
interfered with the government's use of its own property.
/2/ See, e.g., United States v. Hill, 835 F.2d 759, 763 (10th Cir.
1987) (Section 641 ("codifi(ed) as one crime with wide parameters
trespass to property of the government"); United States v. Croft, 750
F.2d 1354, 1360 (7th Cir. 1984) (scope of Section 641 broader than
common law tort foundation, including, e.g., things of intangible
value); United States v. May, 625 F.2d 186, 190-192 (8th Cir. 1980)
(similar); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.)
(similar), cert. denied, 444 U.S. 871 (1979).
/3/ Petitioner misplaces his reliance (Pet. 27) on Moore v. United
States, 160 U.S. 268, 273 (1895), for the proposition that a "thing of
value" under Section 641 is narrowly limited to personal property
subject to larcency-type offenses at common law. The Court in Moore
was addressing the sufficiency of an indictment charging embezzlement
under a predecessor statute. 160 U.S. at 273-274.
/4/ There is no merit to petitioner's contention (Pet. 14-15) that
the indictment did not charge the offense of conversion of government
timber. Count 1 of the indictment charged that petitioner "did
knowingly convert, and did without authority, dispose of a thing of
value of the United States and of the National Park Service, a
department and agency thereof, to wit: 126 trees and saplings, more
or less, which had been cut down on lands owned by the United States."
Pet. App. 23a.
/5/ Although the court in Gemmill assumed that carrying away timber
constituted a separate Section 641 offense, 535 F.2d at 1150, it did
not determine that there could be no Section 641 offense if the timber
were not so transported.
/6/ The other case upon which petitioner relies, United States v.
Petersen, 777 F.2d 482 (9th Cir. 1985), cert. denied, 479 U.S. 843
(1986), is inapposite. That case involved a defendant convicted under
Section 641 who exceeded the scope of a contract to cut down diseased
trees on public lands by cutting down and removing healthy trees.